CACV 555/2021
[2022] HKCA 541
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 555 OF 2021
(ON APPEAL FROM HCAL 104 OF 2019)
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BETWEEN
| AMELLIA | Applicant |
| And | |
| TORTURE CLAIMS APPEAL BOARD | Putative Respondent |
| DIRECTOR OF IMMIGRATION | Putative Interested Party |
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Before: Hon Cheung and Chow JJA in Court
Date of Written Submissions: 22 December 2021
Date of Judgment: 4 May 2022
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J U D G M E N T
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Hon Chow JA (giving the Judgment of the Court):
1. This is an appeal against the order made by Deputy High Court Judge Bruno Chan (“the Judge”) on 2 December 2021 refusing to grant to leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) dated 22 March 2018, whereby the Board dismissed the Applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 8 October 2015 and 19 June 2017 respectively.
2. On 8 December 2021, the Applicant consented to this appeal being disposed of on paper by the court without an oral hearing.
BACKGROUND
3. The Applicant is a national of Indonesia. She arrived in Hong Kong on 14 August 2008 for employment as a foreign domestic helper and was permitted to remain in Hong Kong until the expiration of her employment contract on 13 April 2011 or 2 weeks after termination of her employment, whichever was earlier. Her employment was prematurely terminated on 26 May 2010, but she illegally overstayed. On 30 January 2011, she was arrested by the police for overstaying. After she was referred to the Immigration Department for investigation, she raised a torture claim, alleging that if she was refouled back to Indonesia, she would be harmed or killed by her father or his creditor for failing to assist his father with his loan repayment and/or for failing to convert her religion from Christianity to Islam. After her torture claim was rejected, she sought non-refoulement protection on the same basis. Details of the Applicant’s claim have been summarised by the Judge at §§1-9 of the CALL-1 Form.
4. Having previously rejected the Applicant’s claim based on torture risk[1], the Director, by a Notice of Decision dated 8 October 2015, rejected the Applicant’s non-refoulement claim on the following applicable grounds: BOR 3 risk[2] and persecution risk[3]. By a Notice of Further Decision dated 19 June 2017, the Director rejected the Applicant’s non-refoulement claim based on BOR 2 risk[4].
5. The Applicant appealed the Director’s decisions to the Board. On 22 March 2018, the Board dismissed the Applicant’s appeal, and confirmed the Director’s decisions (“the Board’s Decision”).
6. The Board did not take issue with the Applicant’s claim of fear of harm from her father or his creditor over monetary or religious issues as asserted by her, but found that there was no evidence of any real intention on the part of either of them to seriously harm or kill her other than to put pressure on her to assist her father to repay his debts and/or to follow the family’s practice to convert into a Muslim. In the absence of any further threats from her father in all the years after 2010, the Board found it was doubtful that the Applicant’s father still harboured any adverse interest against her. The Board also found that, if necessary, internal relocation to other parts of Indonesia was available to the Applicant. The Board concluded that her claim for non-refoulement protection failed on all applicable grounds.
THE JUDGE’S DECISION
7. On 11 January 2019, the Applicant filed her Form 86 seeking leave to apply for judicial review of the Board’s Decision.
8. On 2 December 2021, the Judge refused to grant leave to the Applicant to apply for judicial review. At §§23-24 of Form CALL-1, the Judge stated as follows:
“23. As noted above, the Applicant first made her torture claim in 2012, followed by her non-refoulement claim under BOR 3 risk and persecution risk to the Director for which she was represented by her lawyer from DLS and attended a screening interview before an immigration officer in 2015. It is clear from the details disclosed in the Director’s decision that she had been able to make full and proper presentation of her claims including BOR 3 Risk, and in the absence of any further evidence or information which she might have advanced to the Board but was unable to do without any oral hearing before the Board, I do not find this ground reasonably arguable for her intended challenge.
24. Whilst some of the Board’s findings about the loan of the Applicant’s father and the resultant threats made against her as stated in §§32 – 35 of the decision appear to me just peripheral observation of the Adjudicator without any evidential basis from the materials available before the Board as no oral hearing had been held, and that the Adjudicator also appeared to have misconstrued the basis of the BOR 3 Risk in the Applicant’s claim when it concluded in §64 that there would not be any such risk to her because “It would not be in the interest of the loan shark and the Appellant’s father to harm her as long as the Appellant was willing to work overseas in order to pay the debts” when it was clearly her case that that is exactly what she would not to be able to do if she is refouled to her home country, I am not satisfied that such flaws would assist or advance the Applicant’s case any further given the correct finding of both the Board and the Director that state/police protection and reasonable internal relocation within Indonesia would be available to the Applicant to negate any risk arising from her disputes with her father that she may face upon her return to her home country.”
THIS APPEAL
9. In her Notice of Appeal dated 8 December 2021, the Applicant sought to set aside the Judge’s order, stating that her leave application was dismissed because the Judge did not find any procedural error in the Board’s decision and she wanted to show some such error.
10. In her 2-page written submissions dated 22 December 2021, the Applicant repeated her claimed fear upon return to Indonesia.
DISCUSSION
11. In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. The court’s role is not to examine the Board or Director’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration[2018] HKCA 524 at §14(6)).
12. It is also well established that in applications for judicial review in non-refoulement cases, the assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are matters primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board or Director: Re Kartini[2019] HKCA 1022.
13. The Applicant has not pointed to any specific errors in the JUDGE’S DECISION, or raised any viable grounds of appeal against the JUDGE’S DECISION in her Notice of Appeal or written submissions. The mere repetition by the Applicant of the basis of her non-refoulement claim is not a valid ground of appeal.
14. The Applicant’s appeal has no merits, and is dismissed.
| (Peter Cheung) | (Anderson Chow) |
| Justice of Appeal | Justice of Appeal |
The Applicant, acting in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.
[4] This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.